Professional Documents
Culture Documents
2d 464
This action was originally commenced in the Superior Court for Suffolk
County, Massachusetts, on June 7, 1954. The plaintiff, as administratrix of the
estate of her deceased husband, Joseph Cooper, sought recovery of damages
from R. J. Reynolds Tobacco Company (1) under the Massachusetts Survival
Statute, to enforce an alleged cause of action accruing to her intestate during his
lifetime for conscious pain and suffering and pecuniary damages as the result
of his contraction of lung cancer from smoking a certain brand of defendant's
cigarettes, and (2) under the Massachusetts Death Act, G.L. c. 229, 1 et seq., to
recover for the ensuing wrongful death of the intestate.
Upon petition by the defendant, the action was removed to the United States
District Court for the District of Massachusetts. There followed extensive
proceedings in the district court, which need not now be stated in detail. The
district judge, having been dissatisfied with the prolixity of the allegations in
the complaint, gave leave to the plaintiff 'to file one substitute complaint, not a
On appeal, a majority of this court were of opinion that Counts V and VIII of
the substitute complaint set forth with reasonable conciseness, and in
compliance with Rule 8, conventional causes of action in deceit, based upon
alleged fraudulent representations contained in newspaper advertisements and
radio and television broadcasts. We accordingly vacated the judgment of the
district court and remanded the case to that court for further proceedings (1
Cir., 234 F.2d 170); though in all candor we must say that when we thus
remanded the case for trial, we had no lively expectation that the plaintiff
would ever be able to substantiate the causes of action for deceit set forth in
Counts V and VIII.
'The court gives as its second reason for dismissal of the action that 'the
complaint is so drafted that it could not satisfactorily be used by a judge for the
purpose of making rulings during the course of a trial.' Whereas this statement
is doubtless true of the complaint taken as a whole, we believe it has no valid
application to Count V.' (234 F.2d 174.)
When the case got back to the district court, that court entertained a motion by
the defendant to strike all the counts of the substitute complaint except Counts
V and VIII, which the court of appeals had approved. At a hearing on
November 20, 1956, the district court granted this motion to strike, apparently
with the acquiescence of plaintiff's counsel in the view that, as a result of the
mandate of the court of appeals, only Counts V and VIII remained in the
complaint. So far as appears, the further proceedings in the district court were
based upon the assumption on all sides that the complaint before the court
consisted solely of the allegations in Counts V and VIII.
We perceive no reversible error in the action of the district court in granting the
defendant's motion to strike from the complaint all the counts except V and
VIII.
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'I deny the motion to amend to substitute complaint-- on the ground that
judgment has already entered, and on the ground that this case has been so long
in this Court and so much advice had been given to the plaintiff, both by the
Court of Appeals and by this Court, which she chose to disregard, that it would
be most unfair now to reopen the matter.'
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